Docket No.: 261


IN THE MATTER OF JOHN J. ROSARIO


Appearing: Thomas Driscoll, Esq., Counsel for Petitioner
State Ethics Commission; Michael E. Festa, Esq., Counsel for Respondent John J. Rosario


Commissioners: Diver, Ch.; Brickman, Burns, McLaughlin, Mulligan


Date: November 23, 1984


DECISION AND ORDER


Page 205


I. Procedural History


The Petitioner initiated these adjudicatory proceedings on July
25, 1984 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a).
The Order alleged that the Respondent, John J. Rosario, violated
G.L. c. 268A, s.23(paragraph 2)(3) by having a company which had
a substantial contract with his municipal agency pave a portion of
his private firm's parking lot. The Respondent filed an Answer
which admitted the material facts alleged, but denied the
conclusions of law asserted.

An adjudicatory hearing was held on October 11, 1984 before
Commissioner David Brickman, a duly designated presiding officer.
See, G.L. c. 268B, s.4(c). The parties thereafter filed post-
hearing briefs and presented oral agent before the Commission on
November 8, 1984. In rendering this decision and order, each member
of the Commission has heard and/or read the evidence and arguments
presented by the parties.


II. Findings of Fact


1. John J. Rosario is one of five commissioners of the
Barnstable Department of Public Works (BDPW). The BDPW
commissioners oversee the management and operation of the BDPW,
including awarding all contracts over $2,000, setting BDPW policy,
establishing BDPW rules and regulations, and may affirm or overrule
any decision made by the BDPW superintendent.

2. In 1982, BDPW contracted with QRS Corp. (QRS) in the amount
of $280,000 for the installation of a sewer drainage system in
Barnstable. Construction began in November of 1982, was shut down
on December 23,1982 for three months during the winter, and was
completed in June of 1983.

3. Mr. Rosario is the principal stockholder and officer of Acme
Refrigeration, Inc. (Acme) of Hyannis, MA.

4. Mr. Rosario sought to have a portion of the Acme parking lot
paved in December of 1982. He received proposals from the Lawrence-
Lynch Corporation and Tilcon, Inc. for the job, but both paving
contractors subsequently closed down due to a snowstorm. On
December 19,1982, Mr. Rosario signed a contract with JJs, Inc.
(JJS) for the paving of the Acme parking lot. Mr. Rosario admitted
in his Answer that he had asked JJS to hire QRS to perform the
paving work.

5. At the December 21, 1984 meeting of the BDPW, the
commissioners (including Mr. Rosario) unanimously voted to close
down QRS' sewer project for the winter.

6. QRS performed the paving work on the Acme parking lot on
December 23, 1982.


7. By check dated December 31, 1982, Mr. Rosario paid JJS $2,720
for the Acme job. JJS wrote a check to QRS for $2,720 on the same
date.


III. Decision


For the reasons stated below, the Commission concludes that Mr.
Rosario's conduct violated s.23 (paragraph 2)(3), but that no
monetary sanction is warranted under the circumstances.

A. Section 23(paragraph 2)(3)

As a Commissioner of the BDPW, Mr. Rosario held an office in a
municipal agency and was therefore a municipal employee subject to
the provisions of the conflict of interest law. See G.L. c. 268A,
s.1(f) and s.1(g). In pertinent part, s.23(paragraph 2)(3) of
Chapter 268A prohibits a municipal employee from "by his conduct
(giving) reasonable basis for the impression that any person can
improperly influence or unduly enjoy his favor in the performance
of his official duties.. ." A major purpose of s.23(paragraph 2(3)
is "to avoid situations where employees engage in conduct which
raises questions about the

Page 206

credibility and impartiality of their work as [public] employees.
The Commission has consistently applied the [s.23(paragraph 2)(3)]
prohibitions whenever public employees have had private financial
dealings with the same parties with whom they deal as public
employees."[1] Commission Advisory 83-1. In cases where it is
unrealistic or impossible for public employees to avoid such
private dealings, the Commission has articulated a disclosure
procedure which should be compiled with to insure the employee's
impartial performance of his official duties. See Commission
Advisory 83-1; EC-COI-83-25. A public employee's substantial
dealings with a party in both his public and private capacities
coupled with failure to take any affirmative steps to eliminate or
minimize the impression of favoritism (e.g. disclosure to an
appointing official) clearly creates the reasonable basis for the
impression that the party will unduly enjoy the public employee's
favor. In the Mater of Frank Wallen and John Cardelli, 1984 Ethics
Commission 197.

During December of 1982, Mr. Rosario shared with his fellow
commissioners the ongoing official oversight responsibilities with
regards to QRS' contract with the BDPW. Spcifically, Mr. Rosario
participated in a matter at the December 21,1982 BDPW meeting which
would have a substantial impact on QRS: whether QRS's sewer project
would be closed down for the winter. During this period, he also
entered into a contract with JJS to have QRS pave a portion of his
private firm's parking lot.

Mr. Rosario could have avoided questions concerning his
impartiality by disclosing his private dealings to his fellow
commissioners and then abstaining on QRS matters before BDPW. He
did not. Mr. Rosario also failed to disclose these dealings to the
Board of Selectmen. As his appointing officials, the Board of
Selectmen could have taken the responsibility for overseeing the
potential conflict of interest and for determining how the
credibility and impartiality of the BDPW could be maintained.

In light of this non-disclosure, we find that Mr. Rosario's
handling of the situation, i.e. doing business with QRS through the
third party JJS, creates the appearance that he was trying to
conceal these dealings. It may be true that there is no evidence
of actual favoritism by Mr. Rosario on QRS' behalf. However, the
Commission's consistent position, restated recently in its Wallen
decision (supra), is that s.23(paragraph 2)(3) does not require
such a showing. The s.23 prohibition is intended to prevent more
serious situations from occurnng. Accordingly, we find that Mr.
Rosario's conduct constituted a violation of s.23(paragraph 2)(3).

B. Sanction

In determining an appropriate sanction, the Commission's policy
has been to take mitigating circumstances into account. See, e.g.,
In the Matter of Louis L. Logan, supra; In the Matter of William
G. McLean, 1982 Ethics Commission 75. We take note of the following
mitigating circumstances in this case:

(1) Mr. Rosario initially solicited bids from two
companies other than QRS to do the paving work. Both paving
contractors subsequently closed down due to a snowstorm. Only
then did Mr. Rosario solicit from and accept the JJS proposal,
albeit with the knowledge that QRS would perform the paving
work.

(2) The Petitioner presented no evidence of a private
gain on Mr. Rosario's part. The Respondent testified that he
paid the going rate for the job, i.e. QRS did not give Mr.
Rosario a discount from the market price. Likewise, no
evidence of public harm was presented. Mr. Rosario in fact
voted against QRS' interest at the December, 1982 meeting
rather than showing favoritism.

(3) Mr. Rosario concedes that he should have disclosed
the situation to the Barnstable Board of Selectmen and/or
the other BDPW commissioners. Upon learning of Mr. Rosario's
use of QPS, the Board of Selectmen took administrative action
by issuing Mr. Rosario a public reprimand.

In light of these circumstances, we find it would be unnecessary
to impose a monetary penalty in this case. Any sanction beyond the
public reprimand already issued by the Board of Selectmen and this
decision's finding of a violation by the State Ethics Commission
would not further the purposes of Chapter 268A.

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[1] See, e.g.. In the Matter of William L. Bagni. Sr., 1981 Ethics
Commission 30 (state inspector violates s.23(paragraph 2)(3) by
repeatedly soliciting private work from businesses over which he
has official responsibility): In the Matter of Louis L. Logan, 1981
Ethics Commission 40 (state employee violates s.23(paragraph 2)(3)
by advancing his personal funds to a company while the company is
applying for a large loan which the employee will review in his
state position).

End Of Decision